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SUBJECT: Applicability of 45 CFR Part 303 to Tribal IV-D programs, Jurisdiction, and Cooperation with State IV-D programs

The final rule for Tribal Child Support Enforcement Programs was published in the Federal Register on March 30, 2004 (69 FR 16638). These questions and answers will be helpful to tribes and states as they begin to work cooperatively on the delivery of child support enforcement services.

APPLICABILITY OF STATE PROGRAM REQUIRMENTS AND STATE LAWS

QUESTION 1: Are tribes that operate a child support enforcement program under title IV-D of the Social Security Act (the Act) required to comply with the provisions of 45 CFR Part 303?

RESPONSE 1: No. The regulations governing tribal IV-D programs receiving federal funding to operate a child support enforcement program are found at 45 CFR Part 309. The regulations found at 45 CFR Part 303 govern state IV-D programs.

QUESTION 2: Are tribes that operate a child support enforcement program under title IV-D of the Act required to adopt the same performance standards state IV-D agencies use as defined in 45 CFR Part 303?

RESPONSE 2: No. As set out above, the regulations governing tribal IV-D programs are found at 45 CFR Part 309. The requirements for tribal IV-D program performance standards can be found at 45 CFR 309.65(a)(14). This section authorizes tribes and tribal organizations to establish their own performance targets for paternity establishment, support order establishment, current support collections, past-due collections and any other performance measures a tribe or tribal organization may want to submit.

QUESTION 3: Are tribes that apply for direct funding either to operate a comprehensive tribal IV-D program or for start-up funding to develop a tribal IV-D program under title IV-D of the Act required to adopt state laws governing child support enforcement?

RESPONSE 3: No. Tribes are not required to adopt state laws. However, tribes are required to adopt and implement tribal law, code, regulations, and/or other evidence governing the establishment of paternity; establishment and modification of child support obligations; enforcement of child support obligations, and the location of custodial and noncustodial parents. These requirements can be found at 45 CFR 309.90.

QUESTION 4: Are tribes that apply for direct funding either to operate a comprehensive tribal IV-D program or for start-up funding to develop a tribal IV-D program under title IV-D of the Act required to adopt state guidelines for setting and modifying support obligations amounts?

RESPONSE 4: No. Tribes are not required to adopt the state guidelines used by state IV-D programs. The requirements for guidelines for setting and modifying support orders for tribal IV-D programs are set forth in 45 CFR 309.105. A tribal IV-D program must establish one set of child support guidelines by law or action of the tribunal for setting and modifying child support obligation amounts. A tribe may choose to adopt state guidelines but is not required to do so.

COOPERATION WITH STATE PROGRAMS

QUESTION 5: Are tribes that apply for direct funding either to operate a comprehensive tribal IV-D program or for start-up funding to develop a tribal IV-D program under title IV-D of the Act required to provide a copy of the tribe’s child support enforcement plan to the state IV-D agencies?

RESPONSE 5: No. A tribe is not required to provide a copy of its child support enforcement plan to state IV-D agencies. However, we encourage tribes and states to stay in communication with one another because such communication is essential to the successful delivery of IV-D services to children and families. OCSE will, however, notify IV-D Directors of new, approved tribal IV-D programs in the form of a Dear Colleague Letter.

QUESTION 6: Who determines the jurisdiction of the tribal IV-D program?

RESPONSE 6: As set forth in the preamble to the NPRM, published August 21, 2000 (65 FR 50805) and in the preamble to the final regulations (69 FR 16648-49), the jurisdiction of a tribal IV-D program will be determined by tribal law and the jurisdiction of the tribe’s courts or administrative process, and by applicable Federal law (as in the case of Public Law 280 states and tribes).

QUESTION 7: Who determines what cases a tribal IV-D program will handle?

RESPONSE 7: The final rule at 45 CFR 309.65(a)(2) states that a tribe demonstrates capacity to operate a tribal IV-D program by providing evidence that the tribe or tribal organization has in place procedures for accepting all applications for IV-D services and promptly providing IV-D services required by law and regulations. In addition, the regulations at 45 CFR 309.120 require the tribal agency to extend the full range of services available under its IV-D plan to respond to all requests from, and cooperate with, state and other tribal IV-D agencies.

The final rule requires that all child support agencies accept applications for service from anyone and requires that the child support agency provide appropriate services. This includes taking all applications, opening a case for each, determining what services are needed and may be provided by the tribal IV-D agency, and providing all of those services required by IV-D regulations.The tribe must provide, at a minimum, basic assistance, such as location, preparation of documents for intergovernmental processing, and case monitoring and distribution of collections forwarded from another jurisdiction. There may even be circumstances where the tribal agency’s only appropriate service will be to request assistance from another tribal or state IV-D program with the legal authority to take actions on the case. In these and other such instances, states and tribes must work together to ensure that families receive the support they deserve

QUESTION 8: If a tribal IV-D program accepts transfer of a state IV-D case and it is determined in accordance with tribal codes that the tribal IV-D office does not have jurisdiction over the noncustodial parent (NCP), can the case be returned to the state? (As noted in PIQ Tribal 05-01, Transfer of Cases to Tribal IV-D Agencies and Case Closure Criteria, a tribe or state may have a current case but the custodial parent may want to receive services from another IV-D agency, and requests that the case be transferred. This question is not about a referral of an interjurisdictional case.)

RESPONSE 8: No. The tribal IV-D agency should continue to work with the state to ensure the family receives the needed child support services.

As stated in the preamble to the final regulation for Tribal Child Support Enforcement Programs published in the Federal Register on March 30, 2004 (69 FR 16666), at this initial stage in the development of tribal IV-D programs, we want to allow states and tribes time and maximum flexibility to establish local procedures for coordination and cooperation. We are committed to assisting in those efforts, providing written guidance and sharing best practices as needed and requested. If we determine that additional regulations mandating cooperation requirements are necessary for the effective and efficient operation of IV-D programs, we will promulgate them at a later date.

QUESTION 9: When a tribal IV-D program refers a case for enforcement to a state IV-D program, is the state IV-D program limited to utilizing only those enforcement services that are allowed under Tribal law?

RESPONSE 9: No. State programs determine appropriate enforcement when enforcing an order referred from another jurisdiction.

As a practical matter, many states have automated systems that do not allow them to exclude a tribal case from the state IV-D program’s enforcement services. Once a case is entered into a state system, the system will automatically apply all enforcement services available to the tribal case.

However, some state IV-D programs provide specific services. For example, some states have automated systems that allow them to “turn off” the automatic application of enforcement services. We urge states and tribes to work closely to provide the appropriate child support services.

QUESTION 10: If a state IV-D program refers a case for enforcement to a tribal IV-D program, may the tribal IV-D program modify the state’s support order or the arrearages owed under that order? May the tribal IV-D program alter the frequency of repayment of arrearages set in the state order?

RESPONSE 10: No. Under the Full Faith and Credit for Child Support Orders Act (FFCCSOA), neither a state nor tribal IV-D program may modify an order or arrearages owed under the order beyond the parameters set out in FFCCSOA. 28 USC 1738B(b) defines modification as “a change in a child support order that affects the amount, scope, or duration of the order.…” Frequency of payments addressed in a child support order remain within the purview of the court of original jurisdiction, unless the tribal court finds that they have the authority to modify an order pursuant to 28 USC 1738B(e).

QUESTION 11: When a state IV-D program refers a case for enforcement to a tribal IV-D program, can the state IV-D program continue to take enforcement actions that are available to the state IV-D program?

ANSWER 11:Yes. Nothing in Federal legislation or regulation prevents two or more IV-D programs from utilizing the enforcement services available to them on the same case. However, communication between the state and tribal program is key, to avoid duplication of effort.

QUESTION 12: When a state IV-D program refers a case to a tribal IV-D program and continues to take enforcement actions, can the tribal IV-D program close the case, referred by the state, and take no further action on the referral?

ANSWER 12: No. Although there are no case closure requirements for tribal IV-D programs, 45 CFR 309.120 requires tribal IV-D programs to cooperate with state and tribal IV-D programs to provide child support enforcement services by extending the full range of services available under its IV-D plan. Unless the referring IV-D agency requests that the tribal IV-D program cease enforcement action and close the case, closing the case indicates a failure of the tribal IV-D program to cooperate and provide child support enforcement services.

IV-D services must be provided regardless of whether the IV-D case is also receiving services from another IV-D program. To suspend case activity because another IV-D program has taken certain actions would deny the applicant all the services available under Federal, State and Tribal law. Both IV-D programs should notify the other program in order to prevent duplication of effort and to maximize the effectiveness of actions taken through coordinated efforts.